Ottawa’s plastics ban facing industry challenge in closely-watched court case

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Ottawa’s strategy to tackle plastic waste is under scrutiny in a court hearing this week in Toronto, where an industry group is seeking to overturn the federal government’s decision to designate plastic manufactured items as a toxic substance under the Canadian Environmental Protection Act.

The case, scheduled for a three-day Federal Court of Canada hearing that began Tuesday, is seen as a key test for Ottawa’s approach, including a federal ban on single-use plastics such as drinking straws and cutlery.

“This case will have an impact on whether the federal government can move ahead with regulating plastics under the Canadian Environmental Protection Act, so it’s really important,” said Elaine MacDonald, program director with Ecojustice, an environmental law group that is an intervenor in the case on behalf of Oceana Canada and Environmental Defence.

“The industry is challenging the ability of the federal government to list plastics under CEPA, and if they should succeed, it will set back a lot of effort that has been put into the question of how do we deal with plastic pollution, which has become a global problem,” Ms. MacDonald said.

The case concerns the federal government’s decision, announced in May, 2021, to add plastic manufactured items to Schedule 1 of CEPA as a toxic substance. An industry group, the Responsible Plastic Use Coalition, filed an application that month for judicial review, and it is seeking an order to quash the decision.

In June, 2022, federal Environment Minister Steven Guilbeault announced a ban on some single-use plastics, citing the CEPA designation and a 2020 federal study on plastic pollution.

The industry coalition filed another court action against the single-use ban. That application, also in Federal Court, is pending.

In the case being heard this week, the industry group is alleging that Ottawa’s decision to add plastics to CEPA was based on politics, not science. It is challenging the decision on constitutional grounds, saying provinces, not the federal government, have authority over waste management.

The federal government’s decision to order the category of “plastic manufactured items” to be added to the list of toxic substances under CEPA takes in any plastic item formed into a specific shape, says a court document filed by the applicants, which include the Responsible Plastic Use Coalition, as well as Dow Chemical Canada ULC, Imperial Oil Ltd. and Nova Chemicals Corp.

“It applies to thousands – it not tens of thousands – of items, as plastic is present in ‘most products of the Canadian economy.’ It labels all of them toxic, when in fact they are not. They are approved for the most sensitive uses, including medical devices; they deliver clean drinking water, and keep food safe,” the court document says.

The applicants argue the federal government’s decision is fatally flawed on administrative and constitutional grounds.

RPUC representatives declined to comment on the case while it is before the courts.

“The plastics industry is attacking the foundation of the government’s single-use plastics ban – and any other action it is taking on plastic pollution under CEPA,” said Karen Wirsig, plastics program manager at Environmental Defence.

“They are trying to delay and undermine government action plans – that seems to be very clear.”

Environmental groups have been calling for government action on plastics for years, Ms. Wirsig said, saying the amount of plastic waste is increasing worldwide.

“We believe that the only way to get harmful single-use plastics out of our lives, out of the environment and out of the economy is through a federal ban,” she said.

When it launched in 2021, the RPUC argued the federal decision to put plastics under CEPA would discourage innovation in plastic recycling and make it more difficult to create a “circular economy” that would reduce waste.

Ms. MacDonald and Ms. Wirsig both disputed those arguments, saying the industry has failed to stem a growing tide of plastic making its way to landfills, despite long-standing concerns.

“If there was a better way to do it, why haven’t they been doing it over the last several decades?” Ms. MacDonald said.

Mr. Guilbeault said the federal government’s decision is sound.

“We believe, and the evidence shows, that those plastics have very harmful impacts on the environment, on marine and sea creatures,” he told reporters in Ottawa on Tuesday.

“And therefore they can be labelled as toxic. I understand that they might disagree with that, but that is the conclusion to which we came and then we’re sticking to those conclusions.”